Madras High Court
Pandeeswari vs R.Annadurai on 11 July, 2023
C.R.P.(MD).No.2121 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(MD)No.2121 of 2019
and
C.M.P(MD) No.11083 of 2019
Pandeeswari ... Petitioner/Petitioner/
Respondent
-vs-
R.Annadurai ... Respondent/Respondent/
Petitioner
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the fair and decreetal order dated 17.09.2019
passed in I.A.No.28 of 2019 in H.M.O.P.No.33 of 2019, on the file of the Sub
Court, Mudukulathur.
For Petitioner : Mr.C.M.Arumugam
For Respondent : Mr.G.Anbu Saravanan
1/7
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.2121 of 2019
ORDER
The instant Civil Revision Petition has been filed by the petitioners
under Article 227 of the Constitution of India, against the fair and decreetal
order dated 17.09.2019 passed in I.A.No.28 of 2019 in H.M.O.P.No.33 of
2019, on the file of the Sub Court, Mudukulathur.
2. The revision petitioner herein is the petitioner before the trial Court,
and the respondent herein is her husband.
3. A few facts which are necessary for considering this application are
follows:
It appears that the respondent/husband has filed an application for the
relief of divorce on the ground of adultery in H.M.O.P No.10 of 2007.
Wherein, the trial Court has disbelieved the statement of the husband and
dismissed the divorce application vide order, dated 16.11.2010. It appears
that, subsequently, the husband has filed another application in H.M.O.P.No.
33 of 2019, wherein, apart from the ground of adultery, he also raised another
grounds for seeking divorce namely, desertion, cruelty etc. While so, in the
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C.R.P.(MD).No.2121 of 2019
trial Court, the wife/petitioner has filed an application to reject the plaint
under Order 7 Rule 11 of C.P.C on the ground that the subsequent
H.M.O.P.No.33 of 2019 is hit by the principle of res judicata.
4. The learned counsel for the revision petitioner by relying the
judgment reported in 1998 (3) SCC 573 (K.K.Modi vs. K.N.Modi and
others), has contended that the very attempt of the petitioner herein is nothing
but a re-litigation. Therefore, the learned counsel for the petitioner would
submit that the very order passed by the learned trial Judge, dismissing the
application of rejection of the petition under Order 7 Rule 11 of C.P.C is
liable to be interfered with.
5. However, the learned counsel for the respondent would submit that,
the subsequent application in H.M.O.P.No.33 of 2019 has been filed on
different set of cause of action, though certain factual aspects of the earlier
petition has been mentioned in the subsequent divorce. It is the submission of
the learned counsel for the respondent that even after the dismissal of earlier
divorce petition, the petitioner/wife did not come forward to live with the
respondent/husband. Therefore, the same could give fresh cause of action to
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C.R.P.(MD).No.2121 of 2019
file an application under the ground of desertion. He also would further
submit that the allegations contained in the counter statement would also
give a fresh cause of action for him to seek for a divorce on the yet another
ground of cruelty. Therefore, he would further submit that the subsequent
application in H.M.O.P.No.33 of 2019 is not hit by the principle of res
judicata.
6. This Court has carefully gone through both the petitions.
7. While the perusal of the averments made in the both petitions, this
Court could be able to find that, the earlier application was filed one and the
only ground i.e., adultery. But that ground was disbelieved by the trial Court.
Hence, in the subsequent suit, the petitioner, apart from the ground of
adultery, has also dealt about the subsequent fresh cause of action which had
happened after the dismissal of the earlier divorce application in H.M.O.P.No.
33 of 2019.
8. From the averments of the petition, this Court could be able to see
that, the respondent/husband has filed the subsequent application on the
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C.R.P.(MD).No.2121 of 2019
ground of desertion since the petitioner did not return to matrimonial home
and live with him. Thus, from the averments of the petition, this Court could
not find any material to bring the case within the purview of Section 11 of the
C.P.C. Further the ruling submitted by the learned counsel for the petitioner
though speaks about the re-litigation, in other words, res judicata, this Court
could not find any basis for res judicata from the statement of the plaint.
Therefore, the facts of the referred judgment are not applicable to this case.
9. At this juncture, this Court would like to refer the latest judgement of
the Hon'ble Apex Court reported in 2021 (9) SCC 99 (Srihari
Hanummandas Totala vs. Hemant Vithal Kamat and others),wherein, when
the issue of res judicata raised as ground for rejection of plaint under Order 7
Rule 11 (d) of C.P.C, then the pleadings of the earlier case is essential. For
that the earlier petition to be seen. But such exercise will not come with in the
frame work of Order 7 Rule 11 (d) and ultimately dismissed the application.
The above referred judgment is squarely applicable to this case.
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C.R.P.(MD).No.2121 of 2019
10. Therefore, the instant Civil Revision Petition is dismissed.
However, considering the pendency of matrimonial issue, since 2019, this
Court deem it appropriate to direct the Court below to dispose of the case as
expeditiously as possible. There shall be no order as to costs. Consequently
connected Miscellaneous Petition is closed.
11.07.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
To
1. The Sub Court,
Mudukulathur.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.2121 of 2019
C.KUMARAPPAN,J.
ebsi
C.R.P(MD)No.2121 of 2019
11.07.2023
https://www.mhc.tn.gov.in/judis
